Companion bills that acknowledge the right of private citizens to video law enforcement activities without interfering and to sue if those rights are violated are making their way through committees in the Legislature.
Senate Bill 307 was passed by the Committee on Public Safety and Military Affairs, with amendments, 5-0 on Jan. 27. It will be heard today at 10 a.m. by the Judiciary committee, which is chaired by the Sen. Karl Rhoads (D-Oahu), the measure’s author.
And House Bill 595, introduced by Rep. Della Au Bellatti (D-Oahu), has passed both the Labor and Judiciary and Hawaiian Affairs committees, by votes of 6-0, with amendments, and 10-0 with one excused, respectively.
Amendments on both bills include changing the effective dates to placeholder dates to encourage further discussion, July 1, 2077 on SB 307, and July 1, 3000, on HB 595.
The text of the measures codifies the constitutional right of an individual who is neither under arrest nor in police custody “the right to record law enforcement activity and to maintain custody and control of that recording and of any property or instruments used by that person to record law enforcement activities” and provides “that a person under arrest or in custody of a law enforcement officer does not, by that status alone, forfeit the right to have any recordings taken before the arrest or before being taken into custody or the right to have any property and equipment used for the recording to be maintained and returned to that person.”
The legislation also states that an individual subjected to “unlawful interference with recording law enforcement activities … may bring an action for any violation of this section in any court of competent jurisdiction for damages, including: punitive damages; declaratory and injunctive relief; and other remedies as the court may deem appropriate,” including reasonable attorneys’ and expert witness fees.
Sen. Brandon Elefante (D-Oahu), the Public Safety and Military Affairs chairman, stated in his committee report that “taking photographs and videos of things plainly visible in public spaces is a constitutional right, including police and other government officials carrying out their duties.”
“However, law enforcement officers have been observed ordering people to stop recording in public places, and even harassing, detaining, and arresting those who fail to comply,” Elefante wrote. “Recording police activity creates an independent record of incidents, free from accusations of bias or faulty memory, and further promotes the mutual interests of law enforcement and the communities they serve by increasing legitimacy and trust in law enforcement activities.
“This measure will ensure that individuals have the right to record law enforcement activities in public spaces by making this right an express part of state laws and by establishing the ability to seek remedies through civil litigation for violations of this right.”
Rep. Jackson Sayama (D-Oahu), the Labor chairman, stated in his committee report that “the First Amendment of the United States Constitution protects freedom of speech and expression and courts have determined that this includes the right to record police officers in public spaces so long as it does not interfere with the officer’s duties and is done lawfully.”
Sayama added that his committee “finds that it is important to protect the right to record law enforcement activities and prevent infringements upon this right.”
Testimony in support of these measures has been submitted by the Office of the Public Defender, American Civil Liberties Union, Drug Policy Forum of Hawaii, The Legal Clinic, League of Women Voters of Hawaii, Public First Law Center, All Hawaii News and Big Island Press Club.
“Almost no one voluntarily admits that their behavior was inappropriately abusive or violent,” testified Douglas Meller of the League of Women Voters Legislative Committee. “Video recordings can be used to prove what was actually said and done. That is why the public should have a right to record law enforcement activities and file lawsuits to protect this right.”
Nathan Lee, policy legislative fellow for ACLU Hawaii cited four cases, including Hawaii vs. Russo (2017), and testified that “law enforcement officers routinely order people to stop recording in public places, often harassing, detaining, and arresting those who fail to comply.”
“Recording police creates an independent record of incidents, free from accusations of bias or faulty memory,” Lee wrote.
Nancy Cook Lauer, publisher of All Hawaii News, called the legislation “a good-government bill that should be supported.”
“Police officers and other government security forces are public servants,” Cook Lauer wrote. “Their salaries are paid by the public and they should be expected to answer to them. Otherwise, we could expect a police state of unfettered power.”
Hawaii Police Department Chief Ben Moszkowicz said Monday he doesn’t “see any real problem” with the measures, but doesn’t know “if the legislation is necessary.”
“There’s case law already in the state and in the federal system that citizens — as long as they’re not interfering with an operation or investigation — can film anything they want from anywhere they can legally be.”
“We have already trained officers to comply with what appears to be the intent of the legislation,” Moszkowicz said.
As of Monday, no written testimony was submitted opposing the legislation, nor was testimony submitted by law enforcement agencies.
Disclosure: John Burnett is immediate past president of the Big Island Press Club.
Email John Burnett at jburnett@hawaiitribune-herald.com.
